(1) Visit and Search in General.

(2) Immunity of Convoy.

(a) Neutral Merchantmen under Belligerent Convoy.

(b) Neutral Merchantmen under their own Convoy.

C. Right of Visit and Search.

CHAPTER 4

HISTORY OF NEUTRALITY FROM 1818 TO 1861.

I. The British Foreign Enlistment Act.

III. The Monroe Doctrine.

IV. The Declaration of Paris.

V. Recognition of Belligerency and Independence. VI. The General Exercise of Neutral Rights.

HISTORY OF NEUTRALITY FROM 1861 TO 1872.

I. Recognition of Belligerency.

Relation between Great Britain and the United States. The British Neutrality Proclamation based upon Lincoln's Declaration of Blockade.

II. Continuous Voyage as applied to Blockade and Contraband. Cases.

III. Analogues of Contraband and the Right of Visit and Search.

NEUTRALITY AS INFLUENCED BY THE UNITED

STATES

CHAPTER I

HISTORY OF NEUTRALITY DOWN TO 1776 A.D.

I. HISTORICAL INTRODUCTION

The history of the law of neutrality has no source in antiquity. The political and hierarchical theories of government in the ancient world left no room for the existence of anything similar to neutrality.

As late as the middle of the 16th century, there was no word exactly corresponding in meaning to the English word 'Neutrality'. Hugo Grotius, 'the father of International Law', termed neutrals, Medii (middle men),1 and Bynkershoek contented himself with the term 'Non-hostes'.2

With the decline of the Holy Roman Empire and the Papacy, and with the rise of national states, the desire for some established regulations to govern their relations commenced to express itself in the maritime codes as early as the 11th and 12th centuries. The earliest of these were the Amalfitan Tables which appeared in the latter part of the 11th century, and the laws of Oleron in the latter part of the 12th century. The Consolato del Mare was one of the earliest and most famous of all the collections of maritime regulations in force on the Mediterranean coasts.

3

The earliest impulses toward neutrality were prompted by the growing desire for commercial intercourse and its later development was also largely due to the growth of maritime trade. The Crusaders opened the route for new trade on a large scale between the West and Near East. The fascinating tales of the 'Golden East', told by the Polos and other Portuguese and Italian navigators aroused among Occidental adventurers a desire for the gold and silver of the land of Cathay,

1De Jure Belli ac Pacis, edited by Whewell, Vol. III, p. 288. Quaestiones Juris Publici, Vol. I, Pt. IX, p. 67. Bynkershoek also

says of neutrals "Bello Se Non Interponant". Ibid.

3

'John Godolphin's A View of the Admiral Jurisdiction, pp. 10-14.

and the discovery of the New World across the Atlantic brought the maritime Powers of Europe into sharp conflict.

While the commercial enterprises were rapidly increasing and the Colonial Powers were struggling for maritime supremacy, there were practically no regulations regarding neutrals. Whenever a war broke out between two or more hostile states, all the neighboring states were at perfect liberty either to take part in the contest or to render any kind of warlike aid to one or both of the belligerent powers. Generally speaking, a prince might allow a belligerent to levy troops within his territory, or supply him with ammunition, troops, or ships of war. The only restriction was the fear of immediate war that might result from such hostile conduct.

In course of time, efforts were made in time of peace by different Powers to bind other states by treaty engagements, mutually promising not to render any assistance to the enemy of either contracting party in case of war. Most of the European Powers made such alliances with one another, thus securing as many friends as possible with the hope of limiting the relative strength of their enemies. This was indeed the only means by which states were restrained from certain unneutral conduct down to the middle of the 18th century.

On the other hand, the exercise of the belligerent rights of war had always been excessive. Nearly all the European Powers, when at war, constantly endeavored to cut off altogether the commercial intercourse of their enemies with other states. England has always been struggling for the monopoly of sea trade. As early as the time of Edward I, an attempt was made to induce the Flemings to close their commercial dealings with Scotland, and again in 1295, the masters of the neutral vessels lying in English ports were compelled to give security with promises not to trade with France. Under various excuses, neutral commerce was frequently treated with undue severity, and this consequently led to preventive measures on the part of neutrals.

The principle that neutrals have the right to trade with belligerents without interruption in time of war, as in time of peace, was first advanced by the King of Prussia during the war of 1745. This principle was carefully developed by the

4

'Thomas Rymer's Foedera, Vol. I, p. 821; Vol. II, p. 747.

3

Robert Ward's Treatise on Maritime Laws, pp. 74-75.

Commissioners of Frederick the Great, and the King's Tribunal was consequently instructed to establish the rules embodied in them. But in the face of the British opposition, Prussia reluctantly abandoned them."

66

Opinion of Text-writers

The legal status of neutral states was scantily treated by the early text-writers. Grotius' celebrated work, De Jure Belli ac Pacis, published in 1625, said little on the subject in the meagre chapter, De His Qui in Bello Medii Sunt. Compared with the present idea of neutrality, his conception was vague and imperfect. it is the duty of neutrals", said he, "to do nothing which may strengthen the side which has the worse cause, or which may impede the motions of him who is carrying on a just war and in a doubtful case to act alike to both sides, in permitting transit, in supplying provisions, in not helping persons beseiged". He held that the states when parties to an alliance must protect each other.

8

The first writer of real importance on the subject of neutrality was Bynkershoek, whose Quaestiones Juris Publici appeared in 1737. In addition to enemies and friends, or allies, he distinguished a third class of states, the 'Non-enemies', from which class he excluded all those that are under any treaty obligation to assist either the one or the other of the warring parties. If I am a neutral, I must not do anything that will be advantageous to one party, lest I injure the other. The enemies of our friends can be looked at either as our friends or as the enemies of our friends. If they are regarded as our friends, we are right in helping them and giving them our counsel But when they are the enemies of our friends, we are barred from such conduct which is inconsistent with that equality in friendship.

.

Wolff defined neutrals in his Jus Gentium, published in 1749, as those "who adhere to the side of neither belligerent", but he asserts that "when the war is a Causa Justa, the belligCharles De Martens' Causes Célèbres de Droit des Gens, Vol. II, pp. 97-168.

'Grotius, De Jure Belli ac Pacis, translated by Whewell, Vol. III, pp. 288-289.

"Translation from Quaestiones Juris Publici, Vol. I, Pt. IX, p. 69.